Chu (Migration)

The Administrative Appeals Tribunal (AAT) considered a review application concerning a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)). The applicants were identified as the first named applicant, who sought a subclass 457 visa, and the second, third, and fourth named applicants, who were identified as secondary applicants seeking to be members of the primary applicant's family unit. The dispute centred on whether the Tribunal had jurisdiction to review the decision to refuse the primary applicant a visa and whether the secondary applicants met the criteria for a subclass 457 visa as family members.

The Tribunal was required to determine two key legal issues. Firstly, it had to ascertain whether it possessed jurisdiction to review the decision to refuse the first named applicant a subclass 457 visa. Secondly, the Tribunal needed to determine if the second, third, and fourth named applicants qualified as members of the family unit of the primary visa applicant and satisfied the relevant criteria under clause 457.321 of the Migration Regulations 1994.

In relation to the first named applicant, the Tribunal found it lacked jurisdiction. This was because, for subclass 457 visas, section 338(2)(d) of the Migration Act 1958 (Cth) imposes an additional requirement for reviewability. This requirement mandates that, at the time of the decision to refuse the visa, the applicant must either be identified in an approved nomination, have a pending review of a decision not to approve their sponsor or nomination, or, if not a criterion for the visa, be sponsored by an approved sponsor. The Tribunal determined that none of these conditions were met for the first named applicant. Consequently, the Tribunal affirmed the decision not to grant the subclass 457 visas to the second, third, and fourth named applicants, as they did not satisfy the criteria for the grant of such a visa, and the primary applicant's application was the sole basis for their eligibility.